STATE OF IOWA, Plaintiff - Appellee, vs. RACHEL JUNE NELSON , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-102 / 08-0890
Filed March 11, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RACHEL JUNE NELSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Odell G. McGhee
(guilty plea) and Gregory D. Brandt (sentencing), District Associate Judges.
A defendant appeals following her conviction of operating while
intoxicated, third offense. AFFIRMED.
Rachel Nelson, Estherville, pro se.
Mark C. Smith, State Appellate Defender, and Dennis Hendrickson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, John P. Sarcone, County Attorney, and David Porter and Matthew
McKinney, Assistant County Attorneys, for appellee.
Considered by Sackett, C.J., and Potterfield and Mansfield, JJ.
2
MANSFIELD, J.
Rachel Nelson appeals from the judgment and sentence entered by the
district court following her guilty plea to operating while intoxicated, third offense.
Nelson asserts that (1) her counsel rendered ineffective assistance by failing to
file a motion in arrest of judgment because her guilty plea did not comply with
Iowa Rule of Criminal Procedure 2.8(2)(b), and (2) the portion of her sentence
prohibiting her from owning or registering a vehicle during the period of her
driver’s license revocation is an illegal sentence. Upon our review, we affirm and
preserve
Nelson’s
ineffective-assistance-of-counsel
claim
for
possible
postconviction relief proceedings.
I. Background Facts and Proceedings
At approximately 2:00 a.m. on October 21, 2007, a Des Moines police
officer stopped a vehicle driven by Nelson. Following the stop, Nelson exhibited
signs of intoxication, and a subsequent breath analysis demonstrated she had a
blood alcohol content of .16. On November 16, 2007, the State charged Nelson
with operating while intoxicated, third offense, in violation of Iowa Code section
321J.2 (2007) and operating under suspension in violation of section 321J.21.
On January 10, 2008, a pretrial conference was held, at which a preliminary
breath test demonstrated that Nelson’s blood alcohol content was .278. As a
result, the district court ordered Nelson’s bond to be increased to $100,000.
On February 7, 2008, Nelson filed a petition to plead guilty. That same
day, the district court conducted the following in-court colloquy:
THE COURT: Is that what you want to do is enter a plea of
guilty to OWI in the third offense?
DEFENDANT: Yes.
3
THE COURT: You do realize I would give you a trial if you
wanted one. You have a right to be represented by counsel at that
trial. You would have a right to call witnesses, to cross-examine
witnesses called by the State. I would issue subpoena power to
you and force those witnesses to come into court and testify on
your behalf even if they did not want to do so voluntarily, but most
importantly you would have a right to be innocent until proven
guilty. If the State is not capable of meeting its burden of
establishing your guilt beyond a reasonable doubt, you can walk
out of that courtroom free if they couldn’t reach their burden. Do
you understand that? You have to answer out loud.
DEFENDANT: Yes
THE COURT: Of course you give up all those rights when
you plead guilty. You will not have a trial or hearing or anything like
that. In a few minutes you and I will enter into a conversation about
these charges and you will need to tell me what you have done and
I must find that you have violated the law before I can find you
guilty of these charges. Is that what you want to do here today,
plead guilty?
DEFENDANT: Yes.
....
THE COURT: My understanding from your attorney is that
he’s talked to you about all your constitutional rights. They are
contained in a form that we call a Petition to Plead Guilty. Has he
talked to you about all these?
DEFENDANT: Yes, sir.
THE COURT: Did you understand all of these?
DEFENDANT: Yes.
THE COURT: You want to waive all these rights and enter a
plea of guilty to these charges, is that correct?
DEFENDANT: Yes.
The district court accepted Nelson’s guilty plea and advised her of the need to file
a motion in arrest of judgment to challenge the validity of her guilty plea. Nelson
did not file a motion in arrest of judgment.
On May 12, 2008, the district court sentenced Nelson to five years in
prison and ordered her to pay a fine of $3125, plus the surcharge and court
costs.
Nelson’s driver’s license was revoked for six years.
Additionally, the
district court entered a separate order providing that Nelson “shall not purchase
or register any motor vehicle during the period of [Nelson’s] driver’s license
4
revocation.” Upon the State’s request, the district court dismissed the operating
while under suspension charge.
Nelson appeals and asserts that (1) her counsel rendered ineffective
assistance by failing to file a motion in arrest of judgment because her guilty plea
did not comply with Iowa Rule of Criminal Procedure 2.8(2)(b), and (2) the order
prohibiting her from owning or registering a vehicle during the period of her
driver’s license revocation is an illegal sentence.
II. Ineffective Assistance of Counsel
We review ineffective-assistance-of-counsel claims de novo.
State v.
Bearse, 748 N.W.2d 211, 214 (Iowa 2008); State v. Straw, 709 N.W.2d 128, 133
(Iowa 2006).
Although a defendant does not need to raise an ineffective-
assistance-of-counsel claim on direct appeal to preserve the claim, a defendant
may raise the claim if the defendant believes the record is adequate to resolve
the claim. Straw, 709 N.W.2d at 133. If raised on direct appeal, we may either
find the record is adequate and decide the claim or find the record is inadequate
and preserve the claim for possible postconviction relief proceedings.
Id.
Ordinarily, we do not decide ineffective-assistance-of-counsel claims on direct
appeal, but prefer to reserve such claims for postconviction proceedings. State
v. Tate, 710 N.W.2d 237, 239-40 (Iowa 2006). “Only in rare cases will the trial
record alone be sufficient to resolve the claim on direct appeal.” Straw, 709
N.W.2d at 133.
To establish an ineffective-assistance-of-counsel claim, a defendant must
show by a preponderance of the evidence that (1) counsel failed to perform an
essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S.
5
668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Straw, 709
N.W.2d at 133.
Due process requires that guilty pleas are knowing and voluntary. Iowa
Rule of Criminal Procedure 2.8(2)(b) provides district courts with a blueprint for
guilty plea proceedings. Straw, 709 N.W.2d at 133. Rule 2.8(2)(b) states in
relevant part:
Before accepting a plea of guilty, the court must address the
defendant personally in open court and inform the defendant of,
and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the maximum
possible punishment provided by the statute defining the offense to
which the plea is offered.
(3) That a criminal conviction, deferred judgment, or deferred
sentence may affect a defendant's status under federal immigration
laws.
(4) That the defendant has the right to be tried by a jury, and at trial
has the right to assistance of counsel, the right to confront and
cross-examine witnesses against the defendant, the right not to be
compelled to incriminate oneself, and the right to present witnesses
in the defendant's own behalf and to have compulsory process in
securing their attendance.
(5) That if the defendant pleads guilty there will not be a further trial
of any kind, so that by pleading guilty the defendant waives the
right to a trial.
Iowa R. Crim. P. 2.8(2)(b). Substantial compliance with this rule is required.
Straw, 709 N.W.2d at 134.
The State concedes that the district court did not substantially comply with
rule 2.8(2)(b) when it failed to advise Nelson of mandatory minimum or maximum
punishments in its colloquy with her at the time of her guilty plea.1 See id. at 134
(finding that the district court did not substantially comply with rule 2.8(2)(b)
1
The written petition that Nelson signed did, however, mention both the minimum and
maximum punishments.
6
where the district court omitted any mention of the punishment the defendant
could face). Thus, because Nelson’s counsel failed to bring this to the district
court’s attention or file a motion in arrest of judgment, her counsel failed to
perform an essential duty. Id. The State and Nelson disagree over whether the
district court substantially complied with rule 2.8(2)(b) in certain other respects.
We next turn to the question of whether, on the present record, we can
determine whether Nelson was actually prejudiced by her counsel’s failure to file
a motion in arrest of judgment. Nelson “must show that there is reasonable
probability that, but for counsel’s errors, [she] would not have pleaded guilty and
would have insisted on going to trial.” Id. at 138. We find this record to be
inadequate to make a determination of whether Nelson was actually prejudiced.
See id. (“In only rare cases will the defendant be able to muster enough evidence
to prove prejudice without a postconviction relief hearing.”). Thus, we preserve
the issue whether Nelson’s counsel was ineffective in failing to file a motion in
arrest of judgment based on the court’s failure to comply with rule 2.8(2)(b) for
possible postconviction relief proceedings.
III. Illegal Sentence
Our review of challenges to the illegality of a sentence is for corrections of
errors at law. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999). We may
correct an illegal sentence at any time. Id.
An illegal sentence is one that is not authorized by statute.
Woody, 613 N.W.2d 215, 217 (Iowa 2008).
State v.
Nelson asserts that the order
prohibiting her from purchasing or registering a motor vehicle during the period of
her driver’s license revocation is an illegal sentence because it is not authorized
7
by any code section.2 However, the district court’s order is authorized under
Iowa Code section 321J.4B. Section 321J.4B(11)(a)(2) provides that a person
“convicted of an offense under subsection 2, shall not purchase or register any
motor vehicle during the period of impoundment, immobilization, or license
revocation.”
Iowa Code § 321J4B(11)(a)(2).
The question then is whether
Nelson was a person “convicted of an offense” under section 321J.4B(2).
Section 321J.4B(2) deals with impoundment, and states that a motor
vehicle is subject to impoundment if a person commits either of two offenses.
The first type of covered offense is a “second or subsequent offense under
section 321J.2.” The second is the operation of a vehicle while one’s license is
suspended for a violation of section 321J.2. In this case, Nelson in fact pled
guilty to a “second or subsequent [i.e., third] offense under section 321J.2.”
Thus, Nelson was convicted of an offense under section 321J.4B(2), her vehicle
would have been subject to impoundment (if she still had it), and she was
properly prohibiting from purchasing or registering a vehicle during the period of
her license revocation.
Accordingly, we affirm the district court.
AFFIRMED.
2
Nelson asserts that her trial counsel was ineffective for failing to object to the illegal
sentence. However, because an illegal sentence is void, it can be corrected at any time.
See Woody, 613 N.W.2d at 217. Therefore, we need not analyze Nelson’s claim as an
ineffective-assistance-of-counsel claim, but rather we may proceed directly to the merits.
Id.
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